Having undertaken this comprehensive review of the 41 claims asserted in this caseagainst the various 50 Defendants, the Court concludes that the Motions to Dismiss will begranted in part and denied in part as set out herein.

The claims asserted in Counts 1 and 2 are asserted pursuant to 42 U.S.C. § 1983 for violation of the Fourth and Fourteenth Amendment for unlawful searches and seizures without probable cause based on the Non-Testimonial Order and Search Warrant that were allegedly obtained through the intentional or reckless use of false or misleading evidence or material omissions designed to mislead the magistrate judge.

The claims asserted in Count 5 are asserted pursuant to 42 U.S.C. § 1983 for violation of the Fourteenth Amendment based on alleged false and stigmatizing statements by the government in connection with the alleged Fourth Amendment violations in Counts 1 and 2.

With respect to these claims, to the extent that Defendants contend that there was no constitutional violation because probable cause would still exist to support the searches and seizure, even if the allegedly false and misleading statements are removed and the alleged material omissions are included, the Court has concluded that this contention cannot be resolved on a motion to dismiss in light of the Plaintiffs’ allegations here. Such an inquiry is fact-intensive in the present case given the number of and nature of the alleged misrepresentations and omissions.

Therefore, the Court concludes that this issue is more appropriately considered onan evidentiary record after discovery.

These claims for the alleged constitutional violations in Counts 1 and 2 are going forward

( Page 216 of 223)

as to Defendants Nifong92, Gottlieb, Himan, and Levicy based on allegations that they weredirectly involved in the alleged Fourth Amendment violations, and as to Defendant Smith inCount 2 on the basis of bystander liability.93 The claims in Count 5 are going forward as toDefendants Nifong, Gottlieb, Addison, Hodge, and Wilson. The claims in Counts 1, 2, and 5are also going forward as to the City based on the additional allegations contained in Counts 12 and 14, setting out claims for municipal liability. However, to the extent that there are claims proceeding against the City, Plaintiffs may not recover punitive damages from the City. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 2762, 69 L. Ed. 2d 616 (1981). Therefore, the claim for punitive damages against the City will be dismissed. Finally, the Court will allow the § 1983 claims in Counts 1, 2, and 5 to go forward against certain of the Durham Police “supervisors,” specifically, Baker, Chalmers, Hodge, Russ, Council, Lamb, and

(pg 217)

Ripberger, based on Plaintiffs’ allegations as discussed with respect to Count 13. However, atsummary judgment, it will be Plaintiffs’ burden to “pinpoint the persons in the decision-making chain whose deliberate indifference permitted the constitutional abuses to continue unchecked,” and the Court will scrutinize evidence regarding each Defendant’s direct, individual involvement, and evidence regarding their individual intent, in order to determine whether any of them is potentially liable under § 1983 for their own conduct with respect to the alleged constitutional violations that are proceeding in this case.94 The Court notes that the § 1983 claims are not going forward as to Defendant Duke, because the Court finds that Plaintiffs have failed to allege a sufficient basis to support the contention that Duke was a “state actor.”

The remaining claims asserted under 42 U.S.C. § 1983 and 42 U.S.C. § 1985 and § 1986,including all of the claims in Counts 3, 4, 6, 7, 8, 9, 10, 11, 15, 16, and 17 do not state plausible, legally viable claims, and will be dismissed.

With respect to the state law claims, the Court concludes that with respect to Count 18,Plaintiffs have stated a state law claim for obstruction of justice against Defendants Nifong,Gottlieb, Himan, Wilson, Clark, Lamb, Meehan, Levicy, Steel, Brodhead, Dzau, and Burness,with potential respondeat superior liability against the City, DSI, Duke, and Duke Health.

As an alternative to respondeat superior under state law, Plaintiffs have also stated a claim for negligent supervision against Duke Health and Duke in Count 32 and against DSI in Count 35. In addition, Plaintiffs have stated a claim in Count 21 against Duke for breach of contract, but

(pg 218)

limited only to the allegation that Duke imposed disciplinary measures against Plaintiffs,specifically suspension, without providing them the process that was promised. Plaintiffs have also stated a claim in Count 24 for fraud against Defendants Smith, Graves, Dean, Drummond, and Duke, based on allegations that Drummond sent letters to Plaintiffs informing them that Duke had received a subpoena relating to Plaintiffs’ Duke Card information, and fraudulently misrepresented that Plaintiffs’ Duke Card information had not previously been provided to Durham Police.

Finally, with respect to the state law claims against the City in Counts 18, 25, and 26, andthe state constitutional claim asserted in Count 41, the Court concludes that these claims, and the governmental immunity defense raised in the City’s Motion for Summary Judgment [Doc. #86], are intertwined claims, some of which are pled in the alternative, that must be resolved at summary judgment after an opportunity for discovery.95

However, Plaintiffs have failed to state a claim with respect to their remaining state lawclaims, including all of the claims asserted in Counts 19, 20, 22, 23, 27, 28, 29, 30, 31, 33, 34, 36, 37, 38, 39, and 40. Therefore, all of the claims asserted in those Counts will be dismissed.

Based on this determination, the Court notes that claims are going forward as toDefendant Nifong in Counts 1, 2, 5, and 18; against Defendant Gottlieb in Counts 1, 2, 5, and 18; against Defendant Himan in Counts 1, 2, and 18; against Defendant Levicy in Counts 1, 2, and 18; against Defendant Smith in Counts 2 and 24; against Defendant Addison in Count 5;

(pg 219)

against Defendant Wilson in Counts 5 and 18; against the City in Counts 1, 2, and 5 (based on the allegations in Counts 12 and 14), as well as in Counts 18, 25, 26, and 41; against Defendants Hodge, Baker, Chalmers, Russ, Council, Lamb, and Ripberger in Counts 1, 2, 5, and 13, plus Count 18 as to Defendant Lamb; against Defendants Clark, Meehan, and DSI in Count 18, plus Count 35 against Defendant DSI; against Defendants Steel, Brodhead, Dzau and Burness in Count 18; against Defendants Graves, Dean, and Drummond in Count 24; against Defendant Duke Health in Counts 18 and 32; and against Defendant Duke in Counts 18, 21,96 24, and 32.

Having undertaken this comprehensive review of the 41 claims asserted in this case, theCourt is compelled to note that while § 1983 cases are often complex and involve multipleDefendants, Plaintiffs in this case have exceeded all reasonable bounds with respect to the length of their Complaint and the breadth of claims and assertions contained therein. The Western District of Virginia noted similar concerns recently in a § 1983 case pending there, stating that “There is no question but that [the] Complaint is extravagant not only in its length (29 pages and 114 numbered paragraphs), but also in its tone, containing numerous underlinings and italics for emphasis and provocative bold headings, such as, “Part of a Larger Conspiracy?” and, “Things

(pg 220)

Go From Bad To Worse”. Surely Iqbal does not require such spin and one wonders whatcounsel’s aim is in drafting such a pleading. It certainly does not help to persuade the court.”Jackson v. Brickey, No. 1:10CV00060, 2011 WL 652735, at *12 n.4 (W.D. Va. 2011). Theseconcerns are substantially greater in the present case, where Plaintiffs have seen fit to file not29 pages and 114 numbered paragraphs, but 428 pages and 1,388 numbered paragraphs, withdramatic rhetoric and sweeping accusations against a “Consortium” of 50 Defendants, most of which is not relevant to the actual legally-recognized claims that may be available. Indeed,Plaintiffs’ potentially valid claims risk being lost in the sheer volume of the Second AmendedComplaint,97 and Plaintiffs’ attempt at “spin” is wholly unnecessary and unpersuasive in legalpleadings. Plaintiffs approach has required the Court to undertake the time-consuming process of wading through a mass of legally unsupportable claims and extraneous factual allegations in an attempt to “ferret out the relevant material from a mass of verbiage.” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1281 (3d ed. 2004). The Court has nevertheless undertaken this process and has considered each of Plaintiffs’ claims, resulting in this rather extensive Memorandum Opinion. The Court trusts that, going forward, all of the parties will reduce both the volume of filings and the rhetoric contained therein, and will proceed on the remaining claims in a direct, professional manner, without requiring unnecessary involvement from the Court.

However, the Court is also compelled to note that the allegations in the Second Amended

(pg 221)

Complaint that are going forward, particularly as to Counts 1, 2, and 5, set out allegations ofsignificant abuses of government power. Indeed, the intentional or reckless use of false ormisleading evidence before a magistrate judge to obtain a warrant and effect a search and seizure is exactly the type of “unreasonable” search and seizure the Fourth Amendment is designed to protect against. In this regard, it has been noted that “‘if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.’”Washington v. Wilmore, 407 F.3d 274, 285 (Shedd, J., concurring) (quoting Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir. 2004)). In addition, “the Supreme Court has long held that a police officer violates the Fourth Amendment if, in order to obtain a warrant, he deliberately or ‘with reckless disregard for the truth’ makes material false statements or omits material facts. . . . No reasonable police officer . . . could believe that the Fourth Amendment permitted such conduct.” Miller v. Prince George’s County, 475 F.3d 621, 631-32 (4th Cir. 2007) (internal citations omitted). Thus, there can be no question that the Constitution is violated when government officials deliberately fabricate evidence and use that evidence against a citizen, in this case by allegedly making false and misleading representations and creating false and misleading evidence in order to obtain an NTO against all of the lacrosse team members and obtain a search warrant. This case will therefore proceed to discovery on the claims as set out above, and it will ultimately be Plaintiffs’ burden to present proof in support of these claims.

IT IS THEREFORE ORDERED that the Motions to Dismiss [Doc. #167, 168, 169,170, 171, 173, 174, 175, 176, 177, 179] are GRANTED IN PART and DENIED IN PART as

(pg 222)

set out herein. IT IS FURTHER ORDERED that the City of Durham’s Motion for Summary Judgment [Doc. #86] is DENIED at this time, without prejudice to the City raising the issues asserted therein as part of a comprehensive Motion for Summary Judgment at the close of discovery.

A separate Order will be entered contemporaneously herewith.This, the 31st day of March, 2011.

While I am looking forward to reading the entire opinion, Judge Beaty has done what we all hoped for-- he retained enough complaints against enough defendants to allow discovery of the major miscreants.

Discovery is on the way!! (Well, at least after the defendants appeal Beaty's ruling).

His scathing descriptions of the violations of the plaintiff's rights against unreasonable search and seizure indicate that he "gets" the case.

While he did throw out the complaints against some of the secondary defendants, this will allow the major ones to go more clearly under the microscope.

This is a tremendous victory for the former lacrosse players and their famlies.

(I personally wrote Judge Beaty about 2 weeks ago. I'd like to claim some credit for the release today, but it has obviously been in the works for a while).

Here is the bottom line for your spreadsheet of defendants and charges:

Quote:

Based on this determination, the Court notes that claims are going forward as to Defendant Nifong in Counts 1, 2, 5, and 18; against Defendant Gottlieb in Counts 1, 2, 5, and 18; against Defendant Himan in Counts 1, 2, and 18; against Defendant Levicy in Counts 1, 2, and 18; against Defendant Smith in Counts 2 and 24; against Defendant Addison in Count 5; against Defendant Wilson in Counts 5 and 18; against the City in Counts 1, 2, and 5 (based on the allegations in Counts 12 and 14), as well as in Counts 18, 25, 26, and 41; against Defendants Hodge, Baker, Chalmers, Russ, Council, Lamb, and Ripberger in Counts 1, 2, 5, and 13, plus Count 18 as to Defendant Lamb; against Defendants Clark, Meehan, and DSI in Count 18, plus Count 35 against Defendant DSI; against Defendants Steel, Brodhead, Dzau and Burness in Count 18; against Defendants Graves, Dean, and Drummond in Count 24; against Defendant Duke Health in Counts 18 and 32; and against Defendant Duke in Counts 18, 21,96 24, and 32.

However, the Court is also compelled to note that the allegations in the Second Amended Complaint that are going forward, particularly as to Counts 1, 2, and 5, set out allegations of significant abuses of government power. Indeed, the intentional or reckless use of false ormisleading evidence before a magistrate judge to obtain a warrant and effect a search and seizure is exactly the type of “unreasonable” search and seizure the Fourth Amendment is designed to protect against. In this regard, it has been noted that “‘if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.’” Washington v. Wilmore, 407 F.3d 274, 285 (Shedd, J., concurring) (quoting Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir. 2004)). In addition, “the Supreme Court has long held that a police officer violates the Fourth Amendment if, in order to obtain a warrant, he deliberately or ‘with reckless disregard for the truth’ makes material false statements or omits material facts. . . . No reasonable police officer . . . could believe that the Fourth Amendment permitted such conduct.” Miller v. Prince George’s County, 475 F.3d 621, 631-32 (4th Cir. 2007) (internal citations omitted). Thus, there can be no question that the Constitution is violated when government officials deliberately fabricate evidence and use that evidence against a citizen, in this case by allegedly making false and misleading representations and creating false and misleading evidence in order to obtain an NTO against all of the lacrosse team members and obtain a search warrant. This case will therefore proceed to discovery on the claims as set out above, and it will ultimately be Plaintiffs’ burden to present proof in support of these claims.

I hope the Families are satisfied. It's not all we wanted...but when I see Nifong, Levicy, Brodhead, Steel, Wlson, Gottlieb, , Meehan...it thrills me!

The Day of Reckoning. Superb!

Discovery will go forward...and there is hope that... in each INDIVIDUAL case...the full story of the moral depravity of EACH of these Cretins will be fully revealed...and become a burden for THEM to carry professionally (for those who still have a "profession")...and personally...for the rest of their lives.

Let them be shamed.

Let them be humiliated and broken in every way...as they willfully attempted to do to these innocent kids.

The newest lawsuit names Durham leaders, police officers, the City of Durham and Duke University. More than 20 claims in the suit have been thrown out but many more claims remain.

Among those now in the clear are several top Duke officials including John Burness, Larry Moneta and Victor Dzau. But the claims against President Richard Brodhead remain as do claims against Durham police officers Himan and Gottlieb, Private Investigator Linwood Wilson and former Durham Police Chief Steve Chalmers.

The players are suing for untold millions in the wake of the scandal and that's on top of recent reports that the three main defendants have already received millions in settlements with more in the works.

ABC11 Eyewitness News reached out to the City of Durham and a spokesperson says the City is not commenting until the attorney's office finishes its review.

DURHAM (WTVD) -- The remainder of the Duke Lacrosse team, that was not a part of the original three team members who were charged with raping Crystal Mangum in 2006, have filed a federal lawsuit.

The three original players were eventually cleared of the charges.

The newest lawsuit names Durham leaders, police officers, the City of Durham and Duke University. More than 20 claims in the suit have been thrown out but many more claims remain.

Among those now in the clear are several top Duke officials including John Burness, Larry Moneta and Victor Dzau. But the claims against President Richard Brodhead remain as do claims against Durham police officers Himan and Gottlieb, Private Investigator Linwood Wilson and former Durham Police Chief Steve Chalmers.

The players are suing for untold millions in the wake of the scandal and that's on top of recent reports that the three main defendants have already received millions in settlements with more in the works.

ABC11 Eyewitness News reached out to the City of Durham and a spokesperson says the City is not commenting until the attorney's office finishes its review.

On 31 March 2011 the very slow Durham judge has ruled that Count 18 against Richard H. Brodhead goes forward into DISCOVERY phase. We will see how much documentation has survived from 2006. Much may be revealed about how New Critical ignoring of the author leads right to ignoring living people as real. This I will expand upon, but what I said about Brodhead in 1984, that he was blind to human agony, Melville's agony, has proved true several times since then, in different places. Don't be hasty to dismiss my claim here about the longterm effects of the New Criticism. March 31, 2011 3:43 PM

I am afrain that they will emphasize that some defendants and counts were dropped and that Durham will not have to pay punitive damages. This misses the point-- the main story is that depositions have been ordered and that the major miscreants will need to testify under oath.

Having undertaken this comprehensive review of the 41 claims asserted in this case, theCourt is compelled to note that while § 1983 cases are often complex and involve multipleDefendants, Plaintiffs in this case have exceeded all reasonable bounds with respect to the length of their Complaint and the breadth of claims and assertions contained therein. The Western District of Virginia noted similar concerns recently in a § 1983 case pending there, stating that “There is no question but that [the] Complaint is extravagant not only in its length (29 pages and 114 numbered paragraphs), but also in its tone, containing numerous underlinings and italics for emphasis and provocative bold headings, such as, “Part of a Larger Conspiracy?” and, “Things

(pg 220)

Go From Bad To Worse”. Surely Iqbal does not require such spin and one wonders whatcounsel’s aim is in drafting such a pleading. It certainly does not help to persuade the court.”Jackson v. Brickey, No. 1:10CV00060, 2011 WL 652735, at *12 n.4 (W.D. Va. 2011). Theseconcerns are substantially greater in the present case, where Plaintiffs have seen fit to file not29 pages and 114 numbered paragraphs, but 428 pages and 1,388 numbered paragraphs, withdramatic rhetoric and sweeping accusations against a “Consortium” of 50 Defendants, most of which is not relevant to the actual legally-recognized claims that may be available. Indeed,Plaintiffs’ potentially valid claims risk being lost in the sheer volume of the Second AmendedComplaint,97 and Plaintiffs’ attempt at “spin” is wholly unnecessary and unpersuasive in legalpleadings.

Plaintiffs approach has required the Court to undertake the time-consuming process of wading through a mass of legally unsupportable claims and extraneous factual allegations in an attempt to “ferret out the relevant material from a mass of verbiage.” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1281 (3d ed. 2004). The Court has nevertheless undertaken this process and has considered each of Plaintiffs’ claims, resulting in this rather extensive Memorandum Opinion. The Court trusts that, going forward, all of the parties will reduce both the volume of filings and the rhetoric contained therein, and will proceed on the remaining claims in a direct, professional manner, without requiring unnecessary involvement from the Court.

For their part, Plaintiffs allege that the NTO procedure under state law isunconstitutional insofar as it could be construed as authorizing searches and seizures, whichcould include blood samples, urine samples, saliva samples and physical examinations, on ashowing of less than full probable cause.

Plaintiffs further allege that even if the statute itselfis constitutional, the NTO in this case - which effected a search and seizure of all 46 lacrosse team members - violated the Fourth Amendment because it was not supported by probablecause or even by “reasonable grounds.”

Finally, Plaintiffs contend that the NTO resulted in anunconstitutional seizure because the NTO was issued based on an affidavit that was intentionallyfalse and misleading and that would not have supported issuance of the NTO if the false andmisleading information were not considered.

Having considered all of these contentions, the Court concludes that Plaintiffs haveadequately alleged a seizure and a search of their person implicating their rights under the FourthAmendment. See United States v. Dionisio, 410 U.S. 1, 8, 93 S. Ct. 764,769, 35 L. Ed. 2d 67(1973) (noting that “the obtaining of physical evidence from a person involves a potential FourthAmendment violation at two different levels - the ‘seizure’ of the ‘person’ necessary to bring himinto contact with government agents . . . and the subsequent search for and seizure of theevidence”).14

In addition, Plaintiffs have raised substantial questions regarding theconstitutionality of the searches and seizures effected pursuant to the NTO in this case, bothas to the procedure that was followed and the scope of the NTO that was entered.

In considering the NTO process, the Court notes that the North Carolina state court decisions andinterpretations of the NTO process appear conflicting. On one hand, the North CarolinaSupreme Court has recognized that “[t]he invasion of a person’s body to seize blood, saliva, and hair samples is the most intrusive type of search; and a warrant authorizing the seizure of suchevidence must be based upon probable cause to believe the blood, hair, and saliva samplesconstitute evidence of an offense or the identity of a person who participated in the crime.”State v. Grooms, 353 N.C. 50, 73, 540 S.E.2d 713, 728 (2000); see also State v. Welch, 316 N.C.578, 585, 342 S.E.2d 789, 793 (1986) (holding that “[s ]ince the withdrawal of a blood sample issubject to fourth amendment requirements, a search warrant must be procured before a suspectmay be required to submit to such a procedure unless probable cause and exigent circumstancesexist that would justify a warrantless search”).

However, on the other hand, the state courtshave also indicated that “a nontestimonial identification order authorized by article 14 of chapter15A of the General Statutes of North Carolina is an investigative tool requiring a lower standardof suspicion that is available for the limited purpose of identifying the perpetrator of a crime.”Grooms, 353 N.C. at 73, 540 S.E.2d at 728; see also State v. Pearson, 356 N.C. 22, 28, 566S.E.2d 50, 54 (2002) (concluding that the “reasonable grounds” standard is “similar to thereasonable suspicion standard applied to brief detentions” under Terry v. Ohio, 392 U.S. 1, 88S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Thus, it is unclear whether North Carolina courts wouldinterpret the state NTO statutes as authorizing a search and seizure, including seizure of blood,hair, and saliva samples, on less than a full showing of probable cause.15

It is also unsettledwhether such an interpretation would render the state NTO statutes unconstitutional, at least as applied in some instances. This uncertainty is a product of unsettled U.S. Supreme Courtholdings and dicta in this area. In this regard, the U.S. Supreme Court in Davis v. Mississippiheld that the Fourth Amendment applies when police require citizens to come to a police stationfor fingerprinting, but the Supreme Court left open the possibility that in the “unique nature ofthe fingerprinting process” the requirements of the Fourth Amendment could be met by“narrowly circumscribed procedures for obtaining, during the course of a criminal investigation,the fingerprints of individuals for whom there is no probable cause to arrest.” 394 U.S. 721,727-28, 89 S. Ct. 1394, 1387-98, 22 L. Ed. 2d 676 (1969). However, the Supreme Court has notdetermined whether or when such “narrowly circumscribed procedures” could be used, althoughin Davis this possibility was limited to fingerprinting, and did not include blood sampling orother more intrusive searches. Cf. Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826,1835, 16 L. Ed. 2d 908 (1966) (holding, with respect to blood sampling, that “search warrantsare ordinarily required for searches of dwellings, and absent an emergency, no less could berequired where intrusions into the human body are concerned”); Dunaway v. New York, 442U.S. 200, 211-13, 99 S. Ct. 2248, 2256-57, 60 L. Ed. 2d 824 (1979) (noting that Terry v. Ohioallows only narrowly-defined intrusions absent a showing of probable cause, and concluding that“any ‘exception’ that could cover a seizure as intrusive as that in this case would threaten toswallow the general rule that Fourth Amendment seizures are ‘reasonable’ only if based onprobable cause”). In a later case, the Supreme Court acknowledged that some states, in relianceon the suggestion in Davis, have “enacted procedures for judicially authorized seizures for thepurpose of fingerprinting,” but the Supreme Court noted that “state courts are not in accord on the validity of these efforts to insulate investigative seizures from Fourth Amendmentinvalidation,” and the Supreme Court declined to reach any further consideration of that issue.Hayes v. Florida, 470 U.S. 811, 817, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705 (1985).

However, this Court need not resolve all of these unsettled issues at this stage in thepresent case, because even if the procedure and scope of the NTO process would otherwise passconstitutional muster, here Plaintiffs have asserted a claim that the affidavit submitted in supportof the NTO application was intentionally and recklessly false and misleading. In response,Defendants raise extensive factual contentions, with factual comparison charts, to dispute theseallegations and to demonstrate that probable cause existed even if the allegedly false statementsare removed and the material omissions are included. This analysis includes extensive parsingof pieces of the Second Amended Complaint, as well as contentions by Himan as to whatinformation he provided to Nifong, and contentions by Gottlieb and the City as to whatinformation Mangum provided to Gottlieb and Himan during her interviews. However, theanalysis suggested by Defendants requires factual analysis beyond the allegations in the SecondAmended Complaint, and the cases cited by the Defendants in support of this analysis involvesummary judgment determinations, not determinations on a motion to dismiss. Therefore,having considered the parties’ contentions in this regard, the Court finds that this parsing of thefacts, and certainly any consideration of Defendants’ factual contentions in response, is moreappropriate at summary judgment after an opportunity for discovery, when the factual recordis before the Court for consideration.

At this stage in the case, the Court simply concludes thatwhere officers deliberately or recklessly supply false or misleading information to a magistrate judge to support a warrant application, as alleged in the present case, the officers may be liableunder § 1983 for violation of an individual’s Fourth Amendment rights, if their actions result inthe seizure of an individual without probable cause.16

Moreover, the Court concludes that thereis no question that these rights were clearly established, and no reasonable official could havebelieved that it was permissible to deliberately or recklessly create false or misleading evidenceto present to a magistrate to effect a citizen’s seizure. See Miller, 475 F.3d at 631-32 (“[T]heSupreme Court has long held that a police officer violates the Fourth Amendment if, in orderto obtain a warrant, he deliberately or ‘with reckless disregard for the truth’ makes material falsestatements or omits material facts. . . . No reasonable police officer . . . could believe that theFourth Amendment permitted such conduct.” (internal citations omitted)); Brooks, 85 F.3d at183-84.17

Thus, the Court finds that, taking the allegations as true, Plaintiffs have allegedplausible Fourth Amendment claims as set out in Count 1, based on allegations of deliberate orreckless submission of false and misleading evidence, which require at least some discovery sothat Plaintiffs’ claims and Defendants’ qualified immunity defense can be assessed on a factualrecord beyond just the allegations in the Second Amended Complaint.

Related notes:

14 The Court notes that in addition to the “seizure” involved in being compelled toappear at the police station, Plaintiffs have raised a Fourth Amendment challenge to the“search” alleged in this case, which in addition to DNA sampling and “mug shot”photographing, also required them to disrobe for close physical examination, which theycontend invaded a “reasonable expectation of privacy” and went beyond what “a personknowingly exposes to the public.” Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511,19 L. Ed. 2d 576 (1967).

15 The Court notes that there is no question, even under the NTO procedure, that theremust be probable cause to believe that an offense has been committed. The question is onlywith respect to whether there must also be probable cause to believe that the subject of theorder committed the offense or probable cause to believe that evidence of the crime will befound by conducting the search, rather than a lesser showing of only “reasonable suspicion.”

16 The Court acknowledges, as discussed above, the unsettled law regarding whether thesearch and seizure challenged here could be upheld on a showing of less than full probablecause. The Court will allow the parties to address that issue further at summary judgment.However, the Court concludes that there are sufficient allegations to state a plausible claim inorder to go forward at this stage.